Board of Zoning Appeals Rules that Special Exception is Needed at Lewinsville Park

Board of Zoning Appeals Rules that Special Exception is Needed at Lewinsville Park

This testimony is excerpted from the Fairfax County Board of Zoning Appeal's Sept. 16 public hearing on an appeal by the West Lewinsville Heights Citizens Association. By a unanimous vote of 7-0, the board overturned Zoning Administrator Jane Gwin's determination that Lewinsville Park "Remains a public park and does not require a special exceptionî to accommodate an agreement between McLean Youth Soccer and Marymount University.

Then, on Sept. 29, the Board of Supervisors voted to sue the Board of Zoning Appeals.

Under a tradeoff described in a private agreement between MYS and Marymount, the private college would play its soccer and lacrosse games on File 2 at Lewinsville Park

In return, Marymount was to pay the cost of artificial turf at the field. The agreement, to which Fairfax County was not a party, was not publicly released. FCPA leased the field to MYS.

"It is staff's position that the use of the field by Marymount does not change the use from a public use to a special exception or special permit use,î said Planning and Zoning Deputy Administrator Maggie Stehman. "It is not a typical lease. It is somewhat outside of the normal realm,î she said.

"This matter should have properly been sent for a SE hearing, and should be done so at this time,î said Bill Marr, an attorney for the West Lewinsville Heights Citizens Association, which filed the appeal last year.

Until the matter is resolved, Marymount won't be allowed to use the field.

The Issue:

Nancy Gibb, BZA: "For me, this case turns on what is public. What would you say makes this case not public? If it were a public university in Arlington would it be ok?

Bill Marr, attorney for the West Lewinsville Heights citizens Association: "That's an interesting question.

Gibb: If it were George Mason University?

Marr: I believe they probably could. [Marymount] is a private university, for a private purpose. A private university in effect, has used McLean Youth Soccer as a straw man to avoid going through the complete procedures they should be following by [applying] for a special exception.î

Leonard Berman, McLean:

"The issue is not MYS use of the park. The issue is conversion of Lewinsville Park into a college athletic facility.

"Marymount is much more than just the use by another team wearing different colored uniforms. [Field 2] has been engineered to meet different standards artificial turf has been installed, financed in large part by hundreds of thousands of dollars from MMU.î

"To accommodate MYS and MMU, the Park Authority has spent the last year changing many of its countywide policies and practices for park usage.î

Barbara Bodson: A resident whose home is adjacent to Lewinsville Park:

"the use of our back yards and landscaping as a toilet facility.

"Believe me, it is not pleasant to walk out on your back deck and find teenage boys exposed and urinating in your backyard.

"We have been told they have been encouraged by their coaches. They say the porta-johns take too long.

"We have complained to MYS to no avail. We have even filed a police report. I am certain that increased use of the park by Marymount is just going to make this problem a whole lot worse.

"The facilities do not exist. Part of the problem is the spectators, as well as the players use our back yard as a bathroom. There is no manager, and no one in charge. The police have suggested [filing charges of] trespassing, urinating in public, indecent exposure.

James Pammel, BZA: "Have you brought your concerns to the attention of your supervisor?

Bodson: Yes. I have written the Park Authority, and I have called the Park Authority. They don't answer.

Pammel: Have you documented this with pictures? Pictures of the people you say are urinating?

Bodson: "You know what? Some years ago I spoke to MYS.

Part of it is, they come quick, they drop their pants, they pee and they're gone.

"I don't have my camera there all the time. I don't want to be caught to be taking pictures of kids with their pants down. I don't know how else to put this. This probably would not be a great idea. I don't know how to document it other than that.

"There is no manager. There is no one in charge. We can't go to a third party, and say "gee, this just happened.' I don't think I want to be in the bushes with a camera.î

James Hart, BZA: I think we recognize there are always impacts of a park. The public hearing this morning is dealing with some relatively narrow and technical interpretations of the zoning ordinance provision. To the extent that the comments could be focused on the issue that's before us -- the construction of this ordinance provisions -- that would be more helpful to me.

Peggy Huff

My concern is the use of the park fields as a college athletic facility without adequate consideration of the traffic and parking issues. What happens when a Marymount team of 75 players arrives?

College students not the same type of population as parents with young soccer or baseball players. Will college students be as cautious as parents?

Proper [traffic] studies need to be conducted, and they were not. An adequate parking study needs to be conducted, including the opportunity for public input. The resulting study should also be shared with community residents.

Eileen Larson

The controversy we are facing is not about children playing soccer. It is about our Park Authority abrogating the responsibility to properly administer our public parks. They break their own laws, or rules.î

All this was done, initially, in a very secretive way without the benefit of any impact studies. They have no clue as to what the impact will be, nor, apparently, do they care. Over the years, it has been very distressing to watch our Fairfax County public servants align themselves with powerful organizations such as MYS.

Ordinarily, taxpaying citizens often appear at hearings such as this knowing they are considered adversaries, and not part of the decision-making process.

The outcome of this appeal will have a great impact on Fairfax County residents.

Supervisor Mendelsohn has promised to help MYS find more soccer fields. Most of the open land in McLean can be found in our parks. Your adverse decision in this case will set a precedent enabling the Park Authority and MYS to invade other residential neighborhood parks with similar Memorandum of Agreement schemes.

Bob Rosenbaum, Board member of MYI for six years, the last two as MYI president

Lewinsville was established as a family friendly neighborhood park to accommodate our community's youth sports. It was never intended to be a college sports complex.

Nine-11, terrorism, the economy and tight budgets have required us to become innovative and resourceful. However, there are other options available to McLean Youth which do not violate the regulations or the interests of the citizens of Fairfax County.

I strongly object to the deceptive way elected officials and their appointed representatives have allowed the process to proceed to this point, without any consideration whatever, or respect for those who are most directly impacted.

Youth sports in Lewinsville Park? Yes. College sports in Lewinsville Park? No.

Jack Hannon

"In deference to Mr. Hart's request I will attempt to summarize my testimony and depart.

We haven't had a shred of [public process] in the whole prosecution of this application until now. There has been so little information public that members of our association have had to file no less than five FOIA requests just to find out what is going on.

All of the parties on the other side knew what was going months before the residents did

The county was rigorous in shooing off any questions on the interconnection between synthetic turf and Marymount College. There has never been a hearing of any sort on this matter.

This lack of a due process represents a very poor return to those of us in this audience who in the mid 1970s fought hard to induce the county to acquire this land from a developer so that our kids could play in McLean.

We ask you to require public process through accepting the argument that a SE or permit application is needed.

Steven Sulzer, president of WLHCA

The people who surround Lewinsville Park are not anti soccer, they are not anti youth sports and activities. They are very much the opposite.

In response to Mr. Hart's request earlier about focusing comments on public vs. private use: I am most struck in this process, having been a party to it with Mr. Hannon, and with the Fairfax County Park Authority, and Supervisor. Mendelsohn, and McLean Youth Soccer, I am most struck by the fact that Marymount University has been singularly absent from all of our discussions and all of our meetings.

They are not a party to the final agreement that was signed with the FCPA They are distinctly absent. And why?

Because they create the problem that is before this board today. They are a private organization, they want to use that field for their own purposes, private purposes, and they are not even a Fairfax County resident.

There is widespread anger and concern in this community over the failure of the county's zoning procedures to protect the rights and interests of anyone other than MYS.

We need the public remedy afforded by the board, and protection of a public hearing because all efforts to work with MMU, and MYS, and the FCPA, up until this point have been utterly, and completely, fruitless.

We are here to petition this board to remedy the wrongs that have been done, and take account of the need to get some due process back into this system, so that everyone's concerns in the community can be heard, and not just those of MYS in a backroom deal.î

Joan Brandy, Westbury Road, former board member for MYS.

"I have absolutely nothing against soccer games being played at the park.

"When I was a [MYS] board member, we were very concerned with transparency and consideration of neighbors; hence the disappointment at the somewhat private, shall I say, negotiations that have been going on.î

Paul Wieland, Lewinsville Coalition

The board must remember that the citizens who spoke here today from West Lewinsville Heights are solely responsible for the very creation and existence of Lewinsville Park. Nearly 30 years ago, they saved this precious 38-acre site from becoming just another bunch of houses, as planned by the developer.

They alone provided the impetus that prompted the BOS to acquire the land by eminent domain, and the FCPA to establish the park for the enjoyment of all Fairfax County Citizens. This outrageous Park Authority-MYS deal, worked out behind closed doors is small thanks indeed, for these residents' prior efforts and their sacrifices.î

Some would argue that Fairfax County would obtain a first class athletic facility at little or no expense to the taxpayers because MYS and MMU would be footing the bill.

That argument is fallacious and just doesn't hold water.

The county and its citizens, particularly West Lewinsville Heights, would actually be losing an athletic field to two well-funded, and very politically powerful entities. The arrangement essentially would prevent average citizen to enjoy the field, except perhaps at midnight, in the dark, during early morning hours when neither MYS nor MMU is scheduled to practice or a game, or in January or February in the snow, when not even MYS schedules outdoor games.

Please, use common sense and fairness when deciding this appeal. The citizens of West Lewinsville Heights and Fairfax County will have to live with your decision.

Charlotte Bassett Zimmerman

We believe that allowing Marymount, a private institution that's not even situated in Fairfax County, to use a field at Lewinsville Park for its varsity soccer and lacrosse home games is short-sighted, politically motivated, and just plain wrong.

Aside from the logic of allowing this non tax-paying, private, outsider, to use one of our parks for any purpose, you as board members must consider what would happen if some 300 or more fans crowded into the small confines of Lewinsville Park to support their teams?î

I implore you, as stewards of public land, make the right decision. It's in your hands.

Frank Crandall, chair of McLean Citizens Association's Environment, Parks and Recreation Committee:

The process the county and all of its entities FCPA, BOS, county staff has violated stated procedures. Indicative of this, District Parks are supposed to be 50-200 acres. We are dealing with a 38-acre park, which would normally be regarded as a community park.

A lease has been used to effectively deprive citizens at large of the use of public facilities because that lease conveys some exclusivity to the lessee.

The lease has been used to subvert the Department of Community and Recreational Services [from the] scheduling of public recreational facility use.

The lease has been used to negate [the county] policy that 2/3 of team members must be from Fairfax County. That policy was recently upgraded by the Board of Supervisors [effective next year] to 3/4 of team members [who] must be from Fairfax County. Clearly, the agreement with Marymount violates that. Our law recognizes the fiduciary duty as being the highest and most compelling of all duties.

The fiduciary duty of the Park Authority, Board of Supervisors, and county staff is to so administer the county that each of its citizens shares equally in all of its recreational and park resources. I submit to you that those last three points would seem to indicate substantial breach of the fiduciary duty.

A lease has been used to convey a right for a private corporation to, in effect, charge another private corporation money for the use of publicly owned land, which if not outright illegal, certainly represents a gross abuse of discretion.

I would appeal to this board to redress in every possible way the abuses that have been committed by the FCPA. BOS. The zoning administrator. Nobody has clean hands in this.

Discussion after the public hearing:

Stehman, BZA deputy administrator: Whether the use of one field at Lewinsville Park by Marymount [University] as part of the agreement with FCPA and MYS is a public use is the issue that is before us today.

Other public uses are allowed by other organizations [such as] public schools, where meetings are held by public groups and Scouts; also the libraries. I don't think this is that much different.

I think the issue of the field is an issue; the county was interested in having the field upgraded It was not upgraded exclusively for the use of Marymount.

According to what I've heard, there has been some involvement by the citizens in the area. There is also a provision for a formal working group that includes WLHCA to discuss this agreement.

John Pitts, FCPA:

At Cub Run Park, a private group constructed and operates field house. An SE was not required. It was addressed at the 2232 state [a conversion from private to public use that does not require a public hearing]. [It has] Private involvement, and still public control.

Richard Jones Park is leased to a golf concessionaire, which is operating a private facility on public land.

Hammack, BZA: What is the definition of quasi-public use?

If it is quasi-public, it is not exclusively public. We are being told 9.4% is insignificant, that it doesn't count. It doesn't make use of public space by a private university [of] a non-public field.

Stehman: It is 9.4% of the hours MYS has to use the facility, not 9.4 percent of all the hours the field is available for use. The use by Marymount does not intensity the use of the field

Hammack:Well, that may be subject to debate. It is still 300 hours of time given to a private school.

What if Marymount was a larger, named university with a bigger name? Would MYS be allowed to sublease part of its time ñ say, four hours in the afternoon?

Stehman: That determination would be made by the FCPA.

Max Beard, BZA: Richard Jones Park for example; are they a concessionaire?

Pitts, FCPA: Our lease agreement involves us to insure the facilities were constructed in such a way they could be used by the public at the end of the term.

Beard: Is one of the contentions [that] this artificial turf benefits the public when it is not being used by Marymount or MYS?

Pitts: The artificial turf itself enhances the ability to use the field in inclement weather. That was considered to be a public benefit.

Hammack: But that [Cub Run] facility is open to the public. You don't take 10 percent of the time and sell it, or use it for other purposes?

Pitts: Lewinsville Field 2 would still be open to the public. MYS's use would be 53%. [including Marymount's 9.4%]. There would still be 46% available for public use. It certainly wasn't exclusively for use by MYS or Marymount either one. There is still a public benefit available.

Gibb: What bothers me is the emphasis on time, rather than intensity of use. Surely you have analyzed that. This is based on Marymount's representations. What happens if they are wildly wrong? This is the type of thing that would come out in an SE hearing.

Pitts: The agreement acknowledges that we are going to have to be creative in terms of making sure there are limited impacts associated with their use. You are correct. We are relying on Marymount's representations.

Gibb: Do you have an out?

Pitts: Absolutely. We can void the agreement if they exhibit disregard for the terms of the agreement.

Gibb: Are they limited as to the number of spectators they can have?

Pitts: No. Their projections are approximately 115.

Gibb: If you have to have them disregarding something nebulous in order to void the contract, that might be pretty difficult to do.

Pitts: Well, the test in the contract is pretty high. They are required to comply with all FCPA polices, and any applicable laws that would cover indecent exposure or any other incidents.

Gibb: Well, apparently they are not having much luck with that.

Pitts: [Section 10] in the agreement is at least a framework for resolving disagreements. We would resolve any issues as they occur.

Gibb: But is Marymount a party to the agreement?

Pitts: No.

Beard: Were you to void the agreement, would the county be liable for the money that Marymount had put into the facility?

Pitts: That would be a question for the attorney

Beard: Well, is it in the agreement?

Pitts: The agreement is not with Marymount. There is a separate agreement between MYS and Marymount University.

Beard: You don't have that agreement?

Pitts: There is an agreement. We have it in our possession. We feel confident we are covered, if for whatever reason we terminate the agreement. We have grounds for rejection of Marymount claims to the facility.

Beard: And of any money invested in them?

Pitts: The county attorney might be better prepared to answer that.

Hammack, BZA: Does Marymount University have to qualify with Fairfax County policies determining the number of Fairfax County resident son the teams?

Pitts: The field is not released for allocation through the Department of Community and Recreation Services (DCRS). It is being controlled by the Park Authority, and the [DCRS] allocation policy does not apply.

Marr: trying to squeeze the use by Marymount under the public use definition has been somewhat of a Kabooky dance. It just doesn't fit.

James Pammel, BZA: I do not think these sections allow the Park Authority to lease to an entity, which is private, a facility at Lewinsville Park, and then allow another entity, which is institutional, to sublease approximately 9.5 percent of their playing to an institutional use, a college not located in Fairfax County.

Under the term "exclusively for public purposes,î I do not see how you can read Marymount University to use a public park, albeit for a small amount of time, and say it is permitted by right

I think the PA has abrogated its responsibility. There is no control. It clearly has violated the requirements of the ordinance.

Hammack: Your definition of "public use' deals with "exclusively' for public purposes. Anything not being used for public purposes should be reviewed by the county board.

Any other recreational or social use operated by a nonprofit organization is "quasi public' use by definition and cannot be "exclusively' public use.

This field is being used for all home games for soccer and lacrosse under assignment in the lease. Anybody could avoid the provisions of the zoning ordinance if they wanted to subcontract.

Gibb: This is just the kind of case a special exception [review] would be appropriate for.